Zardari's two hats

He is the president of Pakistan and of the PPP, a duality that gives him all the power and Prime Minister Yusuf Raza Gilani all the responsibility.

The Supreme Court of Pakistan has its hands full with cases of great importance. To mention only two: revival of the cases of graft in Switzerland aborted by a measure which it has pronounced to be illegal, and Memogate. But all of them pale into insignificance when compared with a case of fundamental importance that demands its urgent attention. It concerns Asif Ali Zardari's occupation of two posts, the President of the Republic and the president of the Pakistan People's Party (PPP); a duality unheard of in any democracy.

The Supreme Court has before it a judgment on this issue by the Lahore High Court in Pakistan Lawyers' Forum vs Federation of Pakistan & another (that is, Zardari). It was delivered on May 12, 2011, by Justice Umar Ata Bandial on behalf of himself and three other judges, including Chief Justice Ijaz Ahmad Chaudhry. The petition was filed in 2009. Arguments were heard at 25 hearings. It is no disrespect to the learned judges or to counsel for the petitioner and the two amici curiae to point out that the judgment is sadly inadequate. The trees are accurately identified. The wood is missed hopelessly. The judgment covers, as did apparently the arguments, narrow ground on the basis of the literal text of Pakistan's Constitution. It dangerously overlooks the even more important issue of the bar on holding those two posts which is inherent in any democratic system; a fundamental wrong which warps the working of the Constitution regardless of its text. Since the deformity is unheard of, Constitutions do not provide against it. But the judiciary is powerful enough to set the wrong right. It is only fair to the High Court and to counsel concerned to note that the case broke new ground because it arose out of an altogether unprecedented situation.

Now, the Supreme Court alone can provide the corrective, and one hopes it will do so urgently enough. For, the holding of dual posts deforms the working of the Constitution and blights Pakistan's democracy.

The High Court's judgment must first be analysed. On December 14, 2010, the court framed two points for its consideration. The first read thus: The provisions of Article 41(1) of the Constitution of the Islamic Republic of Pakistan, 1973, mandate that the President of Pakistan as the Head of the State and symbol of the unity of the Republic must be nonpartisan and neutral and therefore necessarily shun politics and not be a member let alone an office-bearer of a political party. Reference may be made to the reasons given in the separate opinions of the learned judges in Mian Muhammad Nawaz Sharif vs President of Pakistan and Others (PLD 1993 SC 473).

The other point merits no consideration. Is the President in the service of Pakistan as one holding an office in connection with the affairs of the Federation or a Province as defined in Article 260(1). The provision's reference to the services, civil and military, suffices to exclude the President, quite apart from the explicit exclusion of the Prime Minister, Chief Ministers and sundry others. The first point as framed is confined to Article 41(1) of the Constitution with a reference to the Nawaz Sharif case and no more.

Initially, the Attorney General of Pakistan appeared on March 29, 2010, to submit that he did not object to the writ petition being admitted to regular hearing. Accordingly, a Full Bench of the court was constituted and fresh notices were served on the parties. Counsel appeared for the Federation. None, however, entered appearance on behalf of respondent No.2 [Zardari] although he was served through an officer in his secretariat.

The Federation filed its written statement but only to file an application thereafter seeking recall of the order admitting the petition for full hearing, which was based on its consent, and another application insisting that the plea for recall be decided before further hearing. It was heard on June 21, 2010. The court concluded that as a purely constitutional question was raised in the matter, which was already part heard, it was appropriate that objections raised by the Federation be heard and decided along with the main case. When that order was announced in court all the learned counsel for the Federation left the courtroom. Thereafter, despite several notices served upon the respondents, none has appeared in these proceedings to present their point of view. Such withdrawal of the learned counsel for the respondents from proceedings was as surprising as it is strange. None of the preliminary objections taken disclose a jurisdictional bar to the writ petition. The objections to maintainability of the petition raised were such that the court felt it appropriate to deal with the same along with the purely constitutional points raised in the petition.

Even the Attorney General did not assist the court as was his duty under the Constitution. The court appointed eminent counsel as amicus curiae.

Article 41(2) says: There shall be a President of Pakistan who shall be Head of State and shall represent the unity of the Republic (emphasis added, throughout).

In the Nawaz Sharif case, the Chief Justice observed: Now, the President as the symbol of the unity of the Federation is entitled to the highest respect and esteem by all the functionaries of the state. But it is equally true that this respect and esteem will be forthcoming if he conducts himself with utmost impartially and neutrality, that he keeps himself entirely aloof from party politics and does not give the impression to anyone that he is siding with one faction or working against the other. Other judges spoke in similar terms. Justice Muhammad Afzal Lone said that the President can perform his role if he shuns politics and remains a non-controversial figure.

Justice Saeed-uz-Zaman Siddique held: No doubt, the President as the symbol of the unity of Federation occupies a neutral position in the Constitution, and in that capacity he is entitled to highest respect and regard by all the functionaries of the state. But it is equally important that in order to protect and preserve the dignity of this high office and this neutral image under the Constitution, the President must keep aloof from all political imbroglio. If the President is unable to ward off the temptation to keep away from political game or he starts siding with one or the other political element in the Assembly, he is likely to lose his image as the neutral arbiter in national affairs and as a symbol of unity of Federation under the Constitution. In the latter event, his conduct may also come under criticism from those who may feel betrayed.

The constitutional scheme

The Chief Justice whose observations are quoted but who is not named is Justice Dr Nasim Hasan Shah. The judgment does not quote some even more pertinent observations by him. They deserve to be quoted because they describe more accurately the constitutional scheme: The powers of the Prime Minister under the 1973 Constitution were indeed transcendental and no check or control was provided over them. Undoubtedly, under the Constitution, the President was the head of the state and represented the unity of the Republic (Article 41). But, in the fact, he was no more than a constitutional head. All the responsibility of the administration was conferred on the Prime Minister and in the discharge of his functions the President could only act in accordance with his [Prime Minister's] advice. Indeed every order passed by him required his countersignatures for its validity.

This indeed is the irony in the scheme. The 1973 Constitution was tailored to Zulfikar Ali Bhutto's needs. It made the Prime Minister all-powerful as the Chief Executive of the Federation (Article 90 (1)). The President was reduced to being a rubber stamp, shorn of the limited discretion vested in all heads of state in a parliamentary system. Zia-ul-Haq turned the system on its head. Nawaz Sharif had his 8th Amendment repealed and restored the Bhutto scheme. Pervez Musharraf introduced his own deviations, which were repealed by the 18th Amendment in 2010 on the basis of a national consensus.

With the 18th Amendment the Samson in the President's House stands mostly shorn of his locks. He is, in the main, reduced to the status of the President as conceived by Zulfikar Ali Bhutto in the Constitution of 1973, now effectively revived. He has, in law, less power than the heads of state of the U.K., Canada, Australia and India. His trips abroad must be undertaken only on the advice of the Prime Minister. (Rajiv Gandhi put an end to President Zail Singh's trip abroad.) He has still less power to negotiate deals with representatives of foreign governments, whether at home or abroad. Asif Ali Zardari, of course, has not conformed to these limits at all. Why? Because real power vests in him as party leader in control of the party organisation and party funds.

One unfortunate detail is best mentioned candidly. Nasim Hazan Shah J. was one of the majority in the Supreme Court which upheld Bhutto's conviction for murder by the kangaroo court of Mushtaq Husain. He admitted to the wrong recently; no reason why his opinion on constitutional law should be dismissed. He quotes the dicta of Chief Justice Mohammad Haleem in 1988 in Benazir Bhutto's case, on the registration of political parties: Our Constitution is of the pattern of parliamentary democracy with a Cabinet system based on party system as essentially it is composed of the representatives of a party which is in majority. The 18th Amendment has buttressed the parliamentary system, in which in law power resides with the Prime Minister and the President acts on his advice.

Chief Justice Shah agreed, adding: It is manifest, therefore, that in the scheme of our Constitution the Prime Minister in administering the affairs of the government is neither answerable to the President nor in any way subordinate to him. In formulation of the policies of his government and in the running of its affairs, the Prime Minister is answerable only to the National Assembly and not to the President. Indeed, it is the President who is bound by the advice of the Prime Minister or the Cabinet in all matters concerning formulation of policies and administration of the affairs of the government and not the other way round, as appears to have been mistakenly understood.

The Lahore High Court rightly held that constitutional issues are not resolved solely by relevance to the facts of a case or the literal meaning of the words of a provision of the Constitution read in isolation but through an enlightened and harmonious construction of the Constitution as a whole. Unfortunately, it did not pursue its analysis much further.

Its finding was clear but did not go far enough in explicit terms. The relief it granted reflected the hesitation. The court said: In a case where the President himself becomes embroiled in a political controversy or crises that surrounds the government then he becomes equally vulnerable to the consequence of political turmoil, thereby destroying the very purpose for which the lofty office of President is built in the Constitution. The constitutional history of the country shows that both in 1993 and [in] 1996 when the President of Pakistan exercised his constitutional power to dismiss the government and dissolve the National Assembly under Article 58(2)(b) of the Constitution, such a political decision made the incumbent controversial and ineffective, with the result that he could not survive to complete his term of office.

It should be mentioned, in fairness to the court, that counsel for the petitioner himself, in his reply, sought to withdraw the plea for the President's disqualification but pressed for a direction to the Federation of Pakistan to ask President Zardari to surrender the office of party President. This left the court free to mould the relief.

Immunity question

One positive feature of the judgment is its linkage of the dual post with the immunity of the President from legal proceedings. Under Article 248, it is confined to exercise of powers or functions or for any act done in the exercise of those powers or functions.

The court rejected the plea that in the absence of an express prohibition under the Constitution, the President of Pakistan is permitted to participate in the affairs of a political party. Therefore, such permissible actions under the Constitution would enjoy immunity under Article 248 (1).

Instead, it ruled, in the most important passage in the judgment: In the background of the interpretation given by the Hon'ble Supreme Court to the role, attributes and qualities of the office of President of Pakistan such a view would be wholly inconsistent and misconceived. Therefore, in the circumstances of the present case and on the material of newspaper cuttings that have been attached to the petition and have been filed on record, there is ample evidence that the meetings of the party in government, of which the President is a co-chairperson, are regularly held in the presidency. These meetings result in decisions that are announced to the public, otherwise have political repercussions and draw reactions that may be adverse.

The participation of the President of Pakistan in the above political party decisions is extraneous to the duties and functions of his high constitutional office and therefore such participation and decisions cannot be treated as being done in the performance of his duties and functions as President and therefore immune under Article 248 of the Constitution. The test is laid down in Muhammad Sharif vs Federation of Pakistan (PLD 1988 Lahore 725) on page 735 as follows: The act done or purporting to be done must bear such close and intimate relation to the duty or the function, so that the person concerned can lay a reasonable claim, but not a pretended claim that he did it in the exercise of powers for performance of functions given to him by the Constitution.' The personal immunity from legal action does not place the acts of the President or the Governor, done or purporting to be done in pursuance of their powers and duties under the Constitution, beyond the scrutiny of the courts. What the Constitution establishes is the supremacy of law and not of men, however highly placed they may be. Though the immunity provided by the Constitution gave full immunity but only so long as the person was not guilty of dishonesty or bad faith.

The Privy Council had ruled that acceptance of bribe is no part of the functions of a public servant. Hence no sanction of the State government was necessary. The court added: The fact that the President of Pakistan in his capacity as a co-chairperson of a political party is taking political decisions in the presidency has two aspects. Firstly, such action is inconsistent with his obligations and attributes as envisaged by the Constitution. Secondly, as pointed out by learned amicus curiae Mr. Abid Hassan Minto, Senior ASC [Advocate Supreme Court], such action involves property of the state, namely, the premises of the presidency as a seat of partisan political activity aimed at strengthening and consolidating the political authority of a particular political party. Leaving aside any constitutional limitation imposed on the person of the President as the protagonist of such activity, the conduct of such activity within the presidency breaches the sanctity, dignity, neutrality and lofty status of a highly revered state property.

Logic ignored

In moulding the relief, the court did not follow the logic of its ruling. This is clearly not a case for disqualification of the President. Equally, it is not a case for a prohibitory order as the President is engaging in an activity that is not barred under law. This is a case where the President is exposing himself and his lofty office to likely controversy that can erode the public trust and respect necessary for such office to represent the unity of the Republic. Also in this regard, the premises of the presidency that enjoy the highest sanctity in the public eye is being subjected to use of partisan political interest. That can lower its esteem and sanctity. These actions are being taken not in the discharge of the functions and duties of the President of Pakistan but on account of a personal and private association of the President within his political party. These actions therefore do not enjoy immunity from the judicial process and call for judicial intervention to enforce the Constitution.

Having said that, it proceeded quite gratuitously, and in contradiction to the news reports it had itself relied on, to say: Notwithstanding adverse editorial opinion, there is no report of any political controversy or reaction, whether within the Parliament or in the public, against any action taken by the President in the discharge of his dual office as co-chairperson of his political party.

It ended up with a homily to Zardari to act with aloofness from any partisan political interest. The relief that the court granted reads thus: It is expected that the President of Pakistan would abide the foregoing declaration of law to disassociate himself from political office at the earliest possible. Also in the foregoing respect, it is declared that the use of the premises of presidency for partisan political activity is inconsistent with the sanctity, dignity, neutrality and independence of the presidency. Here again it is expected that the President of Pakistan would cease the use of the premises of the presidency for the purposes and political meetings of his party. Predictably, Zardari did not live up [to] what the court expected from him.

The court was obviously inhibited by a desire to avert a confrontation and by its view that the President is engaging in an activity that is not barred under law. This is a palpably wrong view of the law. Its correction by the Supreme Court should prompt it to order, by a writ of quo warranto under Article 199(1)(b)(2) of the Constitution of Pakistan, that he divest himself of the presidency of the Republic. It has no power in law to order him to quit as head of a private body, the PPP. Given the dire consequences of his holding both posts, fears of a confrontation should not inhibit the Supreme Court; indeed, they have not as its record shows.

The High Court's error is twofold; on the interpretation of the text of the Constitution and on its failure to uphold the very formulations on which the Constitution rests. To begin with, has anyone ever heard of a law or a Constitution that bars the head of state from undertaking any political activity? Or from conducting a business? Or from acting in films for that matter? Certain curbs are inherent in the post or office. The Indian Bar Councils Act, 1926, does not debar advocates from conducting business. But High Courts invoke the power to punish, for professional or other misconduct (Section10), advocates who enter into a partnership business or trade as a partner. Is the head of state to be judged more lightly?

Rulings by Bar Councils are replete with instances of their bans on activities inconsistent with the office of an advocate; acting as a swimming coach, for instance.

John Marshall's warning

One of the greatest Chief Justices of the U.S. Supreme Court, Justice John Marshall, warned as early as in 1819: We must never forget that it is a constitution we are expounding (italics here as in the original). He pointed out that a Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves ( McCulloch vs. Maryland 4 Wheat. 316; 4 L. Ed. 579).

In this spirit of judicial creativity courts have spelt out implied powers for the federal centre, inherent rights for the citizen and curbs on power in a constitutional set-up which are inherent or flow inescapably from the nature of the system.

Bhutto, the architect of the 1973 Constitution, would not have imagined that 35 years later his enterprising son-in-law, Asif Ali Zardari, would assert a right to combine in his person the offices of President of the Republic and of the party Bhutto had founded.

A close textual analysis of the provisions of the Constitution and the scheme it establishes exposes the superficiality of the view that political activity is not barred to the President. That Article 43 bars him from holding any office of profit in the service of Pakistan or any other remunerative position does not imply liberty to hold a political post. If it does, what if he becomes the party's general secretary or treasurer subservient to the party boss? Or, are the courts to define what political posts he may hold?

There is no explicit constitutional bar on political activity by Governors; only a bar on holding an office of profit (Article 103 (1)). The same is true of the Chief Election Commissioner (Article 216). The oaths of office in the Third Schedule, for the President and others, clinch the argument. Each contains the pledge that I will not allow my personal interest to influence my official conduct or my official decision. However, only members of the armed forces are required to declare on oath that I will not engage myself in any political activities whatsoever. Even judges of the Supreme Court and High Courts are not required to take such an oath. The reason is clear. In 1973 Bhutto had memories of the military coups of 1958 and 1969. Absence of such a constraint does not imply freedom to undertake political activities.

If the provisions of the Constitution do not support the Lahore High Court's view that political activity by the President is not barred under law, the scheme of the Constitution also refutes the view. It establishes a parliamentary system in which the President shall act in accordance with the advice of the Cabinet or the Prime Minister (Article 48 (1)). This is turned on its head if the President is the party boss and the Prime Minister, though elected by the National Assembly, is his nominee in the elections. This is a subversion of the entire constitutional system. The courts are not powerless to set it right.

As W.E. Gladstone remarked apropos the parliamentary system in Britain, it presumes, more boldly than any other, the good faith of those who work it ( Gleanings of Past Years, Vol. 1, part 1, page 7; 1879). In his magisterial work Cabinet Government, Ivor Jennings opined: The rule is that on the defeat and resignation of the government the Queen should first send for the leader of the Opposition. This rule is the result of long practice, though it has hardened into a rule comparatively recently. Its basis is the assumption of the impartiality of the Crown. Democratic government involves competing policies and thus the rivalry of parties. The policy to be forwarded is that which secures the approval of the House of Commons, subject to the power of the government of appeal to the electors. If, therefore, a new government has to be formed, the Queen's task is only to secure a government, not to try to form a government which is likely to forward a policy of which she approves. To do so would be to engage in party politics. It is, moreover, essential to the belief in the monarch's impartiality not only that she should in fact act impartially, but that she should appear to act impartially. (3rd Edition, page 32).

Inescapably, the head of state in a parliamentary system enjoys a certain discretionary power, however limited by settled rules, on dissolution of Parliament, on appointment of the Prime Minister if the electorate returns a hung Parliament, and the like. Prof Geoffrey Marshall, an authority on constitutional law, wrote in The Times of London (July 28, 1986) on how the Crown could steer clear of political controversy. A President who brazenly conducts political activity cannot possibly steer himself clear of political controversy or, worse still, be true to his oath of office.

In a famous memorandum to King George V in September 1913, Prime Minister H.H. Asquith pointedly linked the Crown immunity to its aloofness from politics. He expressed fears of the King being dragged into the arena of party politics and become the football of contending factions. A party boss who is President of the country openly proclaims his participation in political warfare.

Zardari it is who negotiates with heads of state most recently Presidents Mahmoud Ahmadinijad of Iran and Hamid Karzai of Afghanistan and goes on foreign jaunts at will and calls the shots from the President's House for all the world to see and hear.

Consider another factor. The 18th constitutional amendment has, by Article 63-A of the Constitution, empowered the head of a political party to declare that a member of his parliamentary party has defected; and therefore authorised him to request the Chief Election Commissioner to disqualify and de-notify a delinquent member. The exercise of such power by a political party head if he were also the President would potentially conflict with his noble bearing of neutrality because the President will have to take sides between political interests in Parliament. That no such conflict can arise presently because Article 63-A of the Constitution becomes operational after the next general elections is held is (?) irrelevant. It shows, graphically, that conflict of interest is inherent in the occupation of both posts. You do not need a law to bind a President or for that matter a judge not to meddle in politics.

Ambedkar's view

As B.R. Ambedkar, Chairman of the Drafting Committee of India's Constituent Assembly, reminded it on October 14, 1949, tacit assumptions of basic kind constitute the foundations of every Constitution I have not found in any Constitution a provision saying that the executive shall obey the legislature, nor have I found anywhere in any Constitution a provision that the executive shall obey the judiciary it is to be presumed that those who work the Constitution know their functions, their limitations and their duties ( Constituent Assemly Debate: Vol. 10; page 269).

Earlier, on November 4, 1948, he had pointed out that a Constitution can be perverted without amending it. It is perfectly possible to pervert the Constitution without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution ( CAD; Vol. 7; page 38). Make the party boss president and the parliamentary system established by the Constitution is transformed into the presidential system; but without the checks and balances necessary in a presidential system. There the executive is not part of the legislature. In a parliamentary system, the Ministry is. What happens then is that the Prime Minister becomes answerable to the party boss, the President. Worse, the independent check of a non-partisan President and the assurance his independence provides to the opposition, indeed to the nation, in a parliamentary system vanishes. The learned Ambedkar sagely predicted on November 22, 1949, when the Assembly finished its job: However good a Constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot ( CAD, Vol.11; page 975).

In the famous case of Al-Jehad Trust vs. Federation of Pakistan (PLD 1996, S.C.367) the Supreme Court of Pakistan took into consideration the basic features of the Constitution, the intent and spirit of the Constitution as well as the basic concept of independence of the judiciary and the separation of the judiciary. Equally important is the basic concept of a President who is not a party official whether its president, general secretary or treasurer and does not conduct political activity. In Jennings' words not only must he be impartial but also be seen to be impartial.

No court can ask him to surrender a party post. It can, however, issue a writ of quo warranto and terminate his tenancy of the President's House. The Lahore High Court's order is utterly unrealistic. What steps can the Federation of Pakistan possibly take to bridle its head? Who will bell that cat, pray?

What has happened is grotesque. In a situation of sheer trauma Benazir Bhutto's assassination, turmoil in the judiciary, and the ouster of Pervez Musharraf from the President's office Asif Ali Zardari easily ensconced himself as President. He did so in palpable breach of public pledges to his allies, to his party and to the nation, that the President would be a person of national eminence. His own fame did not quite fit this description.

In one fell swoop the Constitution was deformed and perverted. The parliamentary system was made to stand on its head. There was a deep purpose behind it. Faced with conviction for graft in the Swiss courts and charges galore, he acquired immunity by making himself President. The Prime Minister, the hapless Yusuf Raza Gilani, faces a hostile audience as he conducts an orchestra with the music score written by Zardari. It is he who faces the Supreme Court's wrath for not writing to the Swiss courts to revive the cases against Zardari. Incidentally, his plea that such a letter would constitute treason under Article 6 of the Constitution is palpably absurd.

Zardari has all the power, Gilani bears all the responsibility. One is reminded of Stanley Baldwin's immortal words on March 18, 1931 borrowed, reputedly, from his cousin Rudyard Kipling of those whose aim is power, but power without responsibility the prerogative of the harlot through the ages.